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Backup DVD Copies Legal Says Electronic Frontier Foundation

Asks Court to OK 321 Studio's DVD X-Copy Software

San Francisco - The Electronic Frontier Foundation (EFF) is asking a
court to confirm that software designed to make backup copies of DVDs
is legal.

Championing the public's rights to use and innovate with media, EFF
has filed a friend-of-the-court brief supporting 321 Studios'
challenge to the Digital Millennium Copyright Act (DMCA). EFF, along
with co-signers Public Knowledge and Computer Professionals for Social
Responsibility, argue that tools such as 321's DVD X-Copy, which
enables a user to make a personal backup copy or excerpt of a DVD,
must be lawful because they are necessary to the public's fair use of
digital media.

The movie studios on the other side of the 321 lawsuit claim that DVD
X-Copy -- and any hardware or software tools that would allow viewers
to back up or extract snippets from DVDs -- is an unlawful
circumvention device.

However, many people use DVD X-Copy for other purposes than copyright
circumvention. Videographers are duplicating their work, professors
are preparing classroom examples, and parents are creating backups for
their children using DVD X-Copy and similar tools.

"To preserve meaningful fair use rights for the public, we must ensure
that technologies remain available to exercise those rights," said EFF
Staff Attorney Wendy Seltzer. "Copyright law should balance public
interest with private protection, and the DMCA's anticircumvention
provisions distort that balance."

The EFF amicus brief builds on public frustration expressed in
comments to the Copyright Office's recent anticircumvention
rulemaking. EFF helped 242 people document the harm they have
experienced from technologically restricted CDs and DVDs.

The Northern District of California court, San Francisco Division,
will hear the case at 9:00 am on April 25, 2003.

EFF Files Comment in Support of Printer Cartridge Chip-maker

EFF this week filed a reply comment with the Copyright Office in
support of three exemptions from the Digital Millennium Copyright Act
(DMCA) sought by printer cartridge chip-maker Static Control
Components, Inc. (SCC). As part of the Copyright Office's triennial
DMCA rule-making, SCC has asked the Copyright Office to grant an
exemption from the ban on circumvention of technological protection
measures in section 1201(a)(1) of the Copyright Act for three classes
of computer programs embedded in devices. 65 commenters filed reply
comments with the Copyright Office.

In its reply comment, EFF pointed out that Congress did not intend the
DMCA's anti-circumvention provisions to apply to situations such as
SCC's, where the ban on circumventing a technological protection
measure has been used to prevent the development of an aftermarket in
uncopyrightable goods. EFF urged the Copyright Office to grant the
DMCA exemption sought by SCC to protect consumers from the potential
anti-competitive effects of such uses of technological protection
measures, and to allow for legitimate reverse-engineering to create
interoperable products.

SCC's request for a DMCA exemption is the latest round in a lawsuit
that began last December, when printer manufacturer Lexmark
International Inc. sued SCC for violating the DMCA's
anti-circumvention provisions. Lexmark makes printer toner cartridges
that contain a special microchip designed to prevent the cartridge
from being refilled. Lexmark claims its printers use an
authentication routine to communicate with the microchip, to verify
that a Lexmark-authorized printer cartridge is installed. SCC sells a
reverse-engineered version of the microchip to printer cartridge
remanufacturers and recyclers, who refill Lexmark printer cartridges
for resale to consumers. Lexmark obtained a preliminary injunction in
February, preventing SCC from continuing to sell its 'Smartek'
microchip. SCC countered with an antitrust complaint earlier this month.

In a case that looks set to raise similar potential anti-competitive
issues, a manufacturer of a garage door opener has sued the creator of
an interoperable universal garage door opener for violating the DMCA's
anti-circumvention provisions.

Ashcroft's New Tactic: Redirecting Websites

The Justice Department has taken over several websites accused of
selling drug paraphernalia, claiming authority under federal asset
forfeiture laws. Visitors to the original sites are redirected to a
site owned by the Drug Enforcement Administration and met with the
following notice:

"By application of the United States Drug Enforcement Administration,
the website you are attempting to visit has been restrained by the
United States District Court for the Western District of Pennsylvania
pursuant to Title 21, United States Code, Section 853(e)(1)(A)."

According to www.2600.com: "Four domains registered through
Register.com, and two which are registered through GoDaddy Software,
have had their original DNS name server entries removed and replaced
with a single name server: NS.PIPEDREAMS.DEA.GOV. The ownership and
contact information of the domains did not appear to have been
modified, however."

This redirection raises speech and privacy issues that would not exist
had the government merely shut down the websites. The cited statute
[21 U.S.C. Sec. 853(e)(1)(A)] simply permits the government to seek
and obtain a temporary restraining order "to preserve the availability
of property." Redirection goes well beyond "preserving availability,"
however. Not only does it commandeer websites of persons who have not
been convicted of a crime in order to facilitate government speech, it
also enables the government to log the IP addresses of those who were
redirected to the DEA website.

EFF is watching these cases for future developments.

CAPPS II on the Defensive?

The campaign against the Transportation Security Administration's
(TSA) CAPPS II (Computer Assisted Passenger Prescreening System II)
appears to be gaining steam. CAPPS II is yet another government
anti-terrorist data-mining program that would try to analyze public
and private databases in search of terrorist activity patterns to be
used in creating various watchlists.

TSA is curious: According to the Washington Post, CAPPS II "will rate
passengers using a color code: red for immediate threats, yellow for
people with questionable backgrounds and green for the vast majority.
The rating will be given to the airlines for decisions on whether a
passenger should be allowed to board or be subjected to additional
questioning."

EFF is not aware of any studies showing that these institutionalized
fishing expeditions will be useful in fighting terrorism, but the
risks they pose to privacy and civil liberties are all too obvious.
The parallels with Poindexter's "Total Information Awareness" program
are clear.

This week EFF, PrivacyActivism.org, and other groups submitted another
set of comments to the government, this time criticizing its proposal
to exempt the Aviation Security Screening Records system from many
portions of the Privacy Act. EFF had previously submitted two sets of
comments criticizing government collection of air passenger and other
information.

In the meantime, concern about CAPPS II seems to be growing. A travel
industry group recently polled more than 250 travel managers and
corporate travel agents: 82 percent said they thought the new system
was an unwarranted invasion of personal privacy and 79 percent said
that the process would discourage travelers from flying on an airline
that employed it.

Several major newspapers ran stories or editorials critical of CAPPS
II on privacy grounds this past week, due partly to the publicity
surrounding Bill Scannell's protest site, www.boycottdelta.com. The
site was created after the press reported that Delta Air Lines will be
testing CAPPS II at three unnamed airports, one of which is believed
to be San Jose International Airport. TSA also announced that
Lockheed Martin will build the backbone of CAPPS II. IBM and other
unnamed companies will work with Lockheed Martin on the project.

Norwegian Appeals Court to Hear "DVD Jon" Case

Oslo, Norway - A Norwegian appeals court has agreed to hear the
prosecutor's appeal of the case against Jon Johansen. Johansen is a
Norwegian teenager acquitted of criminal charges for helping to write
and publish a DVD descrambling program. Johansen used the program
called DeCSS to watch his own DVDs on his Linux computer.

"A Norwegian court has already acquitted Jon Johansen of criminal
charges for taking the steps necessary to view his own DVDs on his own
computers," said Electronic Frontier Foundation (EFF) Legal Director
Cindy Cohn. "We're confident that the appellate court will come to the
same conclusion that Johansen has not violated Norwegian law."

Halvor Manshaus of the Norwegian law firm Schjodt who represented
Johansen in the case noted, "The appeal is not surprising. We won the
acquittal from earlier this year on principle, not on particulars or
formalities. This is important, since the court's ruling gives weight
to our interpretation of the laws in question. I had advised Johansen
that an appeal was to be expected, since the prosecutors have
announced that this is considered a case of principle interest, and we
are prepared for yet another full round in court."

After a request from the Motion Picture Association of America (MPAA),
the Norwegian Economic Crime Unit (OKOKRIM) had charged Jon Johansen
for unscrambling DVDs using DeCSS in 1999 when he was 15 years old.

Johansen was acquitted of the charge of violating the Norwegian
Criminal Code section 145(2), which outlaws breaking into another
person's locked property to gain access to data that no one is
entitled to access.

Johansen's prosecution marks the first time the Norwegian government
has attempted to punish individuals for accessing their own property.
Previously, the government used this law to prosecute only individuals
who violated someone else's secure system, like a bank or telephone
company system, in order to obtain another person's records.

The three-member Oslo City Court unanimously ruled to acquit Johansen.
The Norwegian prosecutors convinced an appeals court to rehear the
case and the court will not likely decide the case until the end of 2003.

Johansen's indictment came more than two years after the MPAA
initially contacted OKOKRIM prosecutors to request a criminal
investigation of the Norwegian teen and his father, Per Johansen, who
owned the equipment on which the DeCSS software was stored. The
charges against Johansen's father were later dropped.

Links:

Deep Links

Deep Links features noteworthy news items, victories, and threats from
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Wooing the Geek Demographic, McDonalds Offers McWireless
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another extra-value meal. Guaranteed to increase your bandwidth."

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